Can I layoff an employee?
Ontario’s Employment Standards Act has a definition of a ‘temporary lay-off’ and provides when a “temporary lay-off” becomes a termination. Some of you may be surprised to learn that just because a layoff is defined as temporary by the Employment Standards Act, it can still amount to a constructive dismissal at law. One employer recently learned this lesson the hard way.
Bevilacqua v Gracious Living Corporation
Mr. Bevilacqua worked as a facilities manager for 15 years at Gracious Living Corporation. In September 2014, he was told he was being temporarily laid off, and that he would be recalled three months later in December 2014. Mr. Bevilacqua took the position that he had been constructively dismissed and initiated a wrongful dismissal action. Gracious Living believed it was permitted to place Mr. Bevilacqua on layoff without any prior notice as long as they recalled him before the statutory period of 13 weeks ended. When the employer was served with Mr. Bevilacqua’s Statement of Claim, it indicated to Mr. Bevilacqua that he would recalled to work on December 15, 2014, the day the statutory period would end.
The court held that there must be a provision in the employment contract that contemplates such a layoff. In the absence of such a provision, a temporary lay-off is a constructive dismissal, as it is a repudiation of a fundamental term of the employment contract: to provide work.
Although Mr. Bevilacqua succeeded in arguing that his temporary lay-off was a constructive dismissal, he was only awarded three months’ pay as damages. The court reasoned that Mr. Bevilacqua was only entitled to receive pay for the duration of the layoff, as failure to accept his employer’s recall was a breach of his duty to mitigate his losses.
Lessons to be Learned
- There is more to employment law than what is set out in the Employment Standards Act. You should always consult an employment lawyer before imposing any changes on your workforce.
- It is always a good idea to have your employees sign an employment contract before they begin working. In this case, an employment contract that contemplated the possibility of a lay-off could have provided the employer with the explicit right to temporarily lay off the employee.
- A failure to accept a position on the exact same terms as prior to a dismissal may be considered to be a failure to mitigate, which can reduce a terminated employee’s damages award.
If you have any questions about your legal rights in the workplace, one of our lawyers would be happy to meet with you. Please call 647-204-8107 or email [email protected].
The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.
Tags: Barrie Employment Lawyer Constructive Dismissal Doing Business In Ontario Employee Terminations Employment Contract Employment Lawyers Barrie Employment Lawyers Toronto Employment Standards Act MacLeod Law Firm Ontario Employment Legislation Temporary Layoff Termination Toronto Employment Lawyer Wrongful Dismissal
Doug’s Top 5 Employment Law Stories of 2022
Here are my top 5 employment law stories for 2022: 1. COVID 19 - Temporary Layoffs This issue remains my number one story because this issue impacts so many court cases. Some judges have concluded that a temporary layoff set out in the Infectious Disease Emergency...
Reducing Litigation Risk
In a recent case, Pohl v. Hudson’s Bay Company, 2022 ONSC 5230 (CanLII),an employer was ordered to pay a long service employee the equivalent of about 3 years pay and contribute about $ 35 000 to his legal fees. Although this was a without cause termination case, it...
Employment Law Update: Electronic Monitoring Policy
A new amendment to the Employment Standards Act requires employers with 25 or more employees on January 1st of a given year to put in place a written policy regarding any electronic monitoring processes they use to monitor employees. The deadline for 2022 is October...